United States v. Stafford , 273 F. App'x 319 ( 2008 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    April 9, 2008
    No. 07-20019                     Charles R. Fulbruge III
    Summary Calendar                           Clerk
    UNITED STATES OF AMERICA
    Plaintiff - Appellee
    v.
    JAMES E STAFFORD
    Defendant - Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:06-MC-343
    Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    James Stafford received a summons from the Internal Revenue Service
    concerning his tax liabilities for the 1999, 2000, and 2001 taxable years. The
    IRS was attempting to determine to what extent the government could collect
    the taxes Stafford owed for that three-year period. To that end, the summons
    required Stafford to produce documents and give testimony about his assets and
    liabilities from June 2005 until the date of compliance with the summons.
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    No. 07-20019
    Stafford invoked his Fifth Amendment right not to incriminate himself and
    refused to produce any documents or answer most of the IRS’s questions. The
    United States then filed suit to enforce the summons. After a hearing, the
    district court ordered Stafford to comply with the summons. Stafford appealed.
    The Fifth Amendment’s self-incrimination privilege “applies only when
    the accused is compelled to make a testimonial communication that is
    incriminating.”1 For a defendant to avail himself of the privilege, however, he
    must do more than simply make a blanket assertion of the privilege.2 A court
    cannot just rely on a defendant’s claim that responding to certain questions
    might tend to be incriminating. That would allow a defendant to assert the
    privilege even where the risk of incrimination is remote or entirely imagined.3
    At the same time, the defendant cannot be expected to explain in detail in open
    court what testimonial communication he would make that would tend to
    incriminate him, as that would eviscerate the very purpose of the privilege.4 To
    balance these two concerns:
    [A] practice has developed whereby . . . the [individual asserting the
    privilege] will allude in very general, circumstantial terms to the
    reasons why he feels he might be incriminated by answering a given
    question. The judge [will then] examine[] him only far enough to
    determine whether there is reasonable ground to apprehend danger
    to the witness from his being compelled to answer. If the danger
    might exist, the court must uphold the privilege without requiring
    the witness to demonstrate that a response would incriminate him,
    the latter inquiry being barred by the privilege itself.5
    1
    Fisher v. United States, 
    425 U.S. 391
    , 408, 
    96 S. Ct. 1569
    , 1579 (1976) (emphasis
    removed).
    2
    United States v. Goodwin, 
    625 F.2d 693
    , 701 (5th Cir. 1980).
    3
    United States v. Melchor Moreno, 
    536 F.2d 1042
    , 1046 (5th Cir. 1976).
    4
    
    Id.
    5
    
    Id.
     (emphasis in original).
    2
    No. 07-20019
    In short, this inquiry requires a court to examine the appropriateness of
    the privilege on an individualized basis so that the court can determine whether
    the defendant faces a real risk of incriminating himself by answering a specific
    question (or group of related questions).
    Here, Stafford invoked the privilege to prevent the IRS from obtaining
    documents on his financial situation and from asking him at least some
    questions related to that topic. As far as refusing to answer questions, Stafford
    has not detailed any of the questions he refused to answer. That lack of detail
    deprived the district court of its ability to judge the risk posed to Stafford with
    respect to any given question.          As far as Stafford’s refusal to turn over
    documents, Stafford made no attempt to explain how the testimonial aspect of
    his turning over the relevant documents could tend to incriminate him.6 Indeed,
    he makes no attempt to tether his concerns about being prosecuted with any of
    the varied sub-categories of documents subsumed by the IRS’s document request
    (e.g., stocks, life insurance policies, checkbooks, cancelled checks). Instead, he
    tries to rely on a generalized fear based on his past interactions with the IRS
    that any document that could possibly be covered by the request would tend to
    incriminate him. That is not a proper use of the privilege.
    AFFIRMED.
    6
    See United States v. Schmidt, 
    816 F.2d 1477
    , 1480–81 (10th Cir. 1987) (explaining
    how turning over documents can have a testimonial aspect that can be protected by the Fifth
    Amendment).
    3
    

Document Info

Docket Number: 07-20019

Citation Numbers: 273 F. App'x 319

Judges: Reavley, Benavides, Clement

Filed Date: 4/9/2008

Precedential Status: Non-Precedential

Modified Date: 10/19/2024